Ndegwa & another v Khaemba & 3 others
The bottom line
#The Court of Appeal gave a delayed party 14 more days to challenge an appeal, ruling clients shouldn't pay for their lawyers' inaction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to file out of time an application to strike out the notice and record of appeal under rule 86
- 2.Whether the delay in filing the application has been satisfactorily explained
- 3.Whether the appellants would be prejudiced if the extension is granted
Key legal issues
#Extension of time to file an application to strike out an appeal under rule 86
The application was allowed; time extended by 14 days despite the delay, because the delay was well explained by the applicants' former advocates' inaction and no prejudice was shown.
The court applied the rule 4 factors: length of delay, reason for delay, and prejudice. The applicants pursued their former advocates throughout 2023 and 2024 without success; new advocates instructed in May 2025 discovered the inaction and the unauthorised consent for stay. The delay was thus well explained, and the appellants would have an opportunity to oppose the striking-out application, so no prejudice arose.
Procedural impropriety of grounds of opposition in place of a replying affidavit
The document styled 'appellants' grounds of opposition' is unknown to the Court of Appeal Rules; rule 52 requires affidavits in reply. In their absence the application was unopposed but still determined on its merit.
The court noted the Rules provide for one or more affidavits in reply by a person served with a notice of motion, not grounds of opposition. Since no replying affidavit or submissions were filed, the application was unopposed; nevertheless the single judge was duty bound to determine it on its merit.
Legal principles established
#- In an application for extension of time under rule 4, the court exercises an unfettered but judicious discretion, considering the length of the delay, the reason for the delay, and the degree of prejudice to the respondent.
- A litigant should not be made to suffer for the mistakes of their former advocates.
- The Court of Appeal's Rules do not provide for grounds of opposition by a respondent to an application; rule 52 requires affidavits in reply.
Court orders
#- 1.Extension of time for filing an application to strike out the appeal by 14 days from the date of the ruling
- 2.Costs of the application to be borne by the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- ELC No. 576 of 2012
- Jurisdiction invoked
- Rules of this Court, rules 4 and 86 (application for extension of time to strike out a notice and record of appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, I allow the application and hereby extend the time for ling an application to strike out the appeal by 14 days from the date of this ruling. The costs of this application shall be borne by the appellants.
Among the factors that I have to take into consideration in this application are the length of the delay; the reason for the delay; and the degree of prejudice to the respondents if the application is granted.
The applicants should not be made to suer because of the mistakes of their former advocates, as was held in Belinda Muraya & 6 Others vs Amos Wainana [1978] eKLR.
Issues in the judgment
#Conflicting dates for filing of the record of appeal
Bench listing shows 'DK MUSINGA, P' but the signature block reads 'JUDGE OF APPEAL'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndegwa & another v Khaemba & 3 others", Case Analysis (2025). Civil Appeal (Application) E093 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2322/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.